Article 50 one year on: negotiating Brexit

Nearly one year on from sending the Article 50 letter, where does the process stand?

The first three months of the talks were effectively suspended while the Conservative Party called an early election in an attempt to increase its majority – a gambit which spectacularly backfired.

The following six months were dominated by the issues which both sides agreed to treat as a priority – the financial settlement, the status of EU27 and UK citizens who moved before Brexit day, and the Irish border with Northern Ireland – although the UK side would rather have been discussing future trade
relations in parallel.

Those priority issues were discussed alongside less high-profile talks on ‘separation issues’, such as what happens to European Arrest Warrants which are pending on Brexit day.

The talks were characterised by the UK’s gradual, reluctant acceptance of the EU27 position on many points, notably the extent of financial commitments outstanding on Brexit day and the level of detail necessary to deal with citizens’ rights issues.

In the event, there was a partial, provisional and political agreement on these points in the form of a Joint Report of the parties in December 2017. This report (which I have analysed elsewhere) noted partial agreement on separation issues, extensive agreement on the financial settlement, and agreement on many main points related to citizens’ rights.

However, there was a vague, formless fudge on the issue of the Northern Ireland/Republic border. But it wasn’t entirely the UK agreeing to EU27 positions—the EU27 gave way somewhat on limiting the future family reunion rights of EU27 citizens, for instance.

The agreement was enough for the EU to confirm that, in its view, ‘sufficient progress’ had been made on the first stage of the talks to move on to discuss a post-Brexit transition period, which the Prime Minister had requested in her Florence speech several months before.

This soon resulted in the EU27 tabling a short legal text providing essentially that the UK would still apply EU laws until the end of 2020, including new EU laws, but with no representation in the EU institutions after Brexit day. Despite this unsatisfactory position, the UK was willing to agree to this in principle for economic reasons, although it continues to argue over the details.

By the end of February 2018, the EU27 tried to move things on by tabling a lengthy draft text of the entire withdrawal agreement (an amended version has since been tabled, on 15 March). The main shock for the UK was the inclusion of a protocol on the Northern Ireland/Republic border which set out in detail the EU27’s interpretation of the agreed option of Northern Ireland remaining fully aligned with relevant EU law, without elaborating upon or giving precedence to the other agreed options to avoid a hard border that the UK prefers.

This seems set to be the issue that raises the biggest risk of torpedoing the talks altogether. (For more detailed analysis, see my annotations of the border protocol, the citizens’ rights clauses, and dispute settlement issues).

Shortly afterwards, another amended draft was tabled, on 19 March, this time indicating that the EU and UK had agreed on most issues (the main exceptions being the Irish border issues and future dispute settlement). As a result of this partial agreement, the EU side agreed on 23 March that this progress is sufficient to start talks on the future UK-EU relationship, particularly on trade but also on other issues like security (which I have discussed elsewhere)—fully a year after the Article 50 letter was sent.

Any agreement on the future relationship will likely take the form of a declaration linked to the withdrawal agreement, although it remains to be seen how detailed it will be and what exactly it will say.

Formal negotiations on the actual treaties giving effect to this future relationship will then start after Brexit day and likely continue for some time after that. Those who are bored with Brexit already are set for an extended taste of what it feels like to be a football widow.

Overall, the negotiations have been a far cry from what some Brexiters predicted: that they would be wrapped up in a few hours or days in the form of a short, simple text. The fact that the UK has agreed to pay tens of billions of pounds also demonstrates the balance of power in the negotiations, which is firmly in favour of the EU.

But the talks haven’t been as one-sided as most Remainers suggested they would either. For instance, the UK has recently secured important concessions to protect its fisheries, and to abstain from EU foreign policy decisions it fundamentally objects to during the transition period.

Despite the public confusion or ignorance on Brexit issues, often displayed by senior ministers – and to some extent the official opposition as well – the UK’s negotiators are quietly getting on with the job as best they can.

Time will tell whether the Brexit talks are ultimately doomed to failure due to the Ireland/Northern Ireland border and/or other issues. But the story to date has been one of slow but steady progress.

By Professor Steve Peers, Brexit co-investigator at The UK in a Changing Europe. This piece was taken from our Article 50 one year on report.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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